Gibraltar Rock, Inc. v. New Hanover Township Zoning Hearing Board
68 A.3d 1012
Pa. Commw. Ct.2013Background
- Gibraltar Rock, Inc. and Sahara Sand, Inc. (Landowners) seek quarry approval via 2007 zoning permit application.
- History: prior Gibraltar Rock applications challenged the zoning ordinance; 2001 ordinance amended to permit quarrying in HI district.
- 2007 application raised procedural validity challenge to Ordinance 01-6 and substantive challenge to pre-2001 ordinance; Board dismissed 2007 application as duplicative of earlier challenges.
- Zoning Hearing Board delayed written decision beyond 45 days; Landowners filed mandamus to deem approval under MPC 908(9).
- Trial court dismissed mandamus: (a) substantive challenge barred by MPC 916.1(i); (b) procedural challenge time-barred; (c) Landowners had no right to file 2007 application; Landowners appealed, leading to remand on procedural challenge only.
- Court affirming the trial court on appeal, on grounds including that 45-day deemed-approval does not apply to procedural challenges, and that under MPC 916.1 and 908(9) a deemed approval is not warranted for Landowners’ procedural challenge; but Landowners’ 2007 application would not be deemed approved due to substantive validity concerns.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 2007 application is void ab initio and not subject to 45-day deemed approval | Landowners: merits irrelevant; board's delay triggers deemed approval. | Board/Intervenors: 916.1(i) bars duplicative substantive challenges; void ab initio. | Trial court correct to bar deemed approval; underlying substantive challenge controls. |
| Whether Landowners’ 2007 procedural validity challenge can yield a deemed approval despite timing | Landowners: 45-day deadline dictates deemed approval for procedural issues. | 916.1(i) and timeliness bar; procedural challenge not within MPC scope. | No deemed approval; procedural challenge cannot be deemed approved under 908(9) in this context. |
| Whether Landowners waived their procedural validity challenge by not asserting its effect after dismissal | Landowners: not waived; remand permits further proceedings. | Landowners failed to pursue after dismissal; issues intertwined with substantive challenges. | Waiver/coherence issues; court did not grant deemed approval. |
| Whether allowing deemed approval would conflict with remand order and public notice requirements | Deemed approval would advance Landowners’ case and public notice de novo review. | Remand directs trial court proceedings; deemed approval inconsistent with remand. | Deemed approval not appropriate; risks conflicting with remand and de novo review. |
Key Cases Cited
- Borough of Monroeville v. Foltz, 290 A.2d 269 (Pa. Cmwlth. 1972) (mandamus/time limits and public notice considerations in zoning)
- WeCare Organics, LLC v. Zoning Hearing Board of Schuylkill County, 954 A.2d 684 (Pa. Cmwlth. 2008) (mandamus to compel deemed approval for late decision; timing limits)
- Nextel Partners, Inc. v. Clarks Summit Borough/Clarks Summit Borough Council, 958 A.2d 587 (Pa. Cmwlth. 2008) (exhaustion of time limits; avoidance of gamesmanship in timing)
- DeSantis v. Zoning Hearing Board of the City of Aliquippa, 53 A.3d 959 (Pa. Cmwlth. 2012) (de novo review upon appeal; public notice considerations)
- Lamar Advertising Company v. Zoning Hearing Board of the Municipality of Monroeville, 939 A.2d 994 (Pa. Cmwlth. 2007) (mandamus standard and review of zoning board delays)